Madhya Pradesh High Court
Purushottam Das And Ors. vs Anil Kumar And Ors. on 24 November, 1998
Equivalent citations: 1999(1)MPLJ307
ORDER S.P. Srivastava, J.
1. Feeling aggrieved by the order passed by the First Appellate Court whereunder allowing the appeal of the defendants-tenants and setting aside the decree of eviction passed against them by the trial Court, the suit has been remanded for fresh decision in accordance with law, after appointing a guardian-ad-litem for the minor appellant No. 3, the plaintiffs have now approached this Court by means of the present appeal seeking redress praying for setting aside of the impugned order of remand.
2. I have heard the learned counsel for the appellant as well as the learned counsel representing the tenant-respondents and have carefully perused the record.
3. The facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. The plaintiffs filed a suit giving rise to this appeal in the year 1986 impleading therein Anil Kumar and Mst. Harbanshorani Gandhi as the defendants praying for a decree of eviction against them from the accommodation in dispute and for recovery of Rs. 100/- per month as arrears of rent towards damages for use and occupation pendente lite and future. The plaintiffs asserted that the defendants were their tenants in the accommodation in dispute at a rental of Rs. 100/- per month which was paid only till the month of May 1986 where after in spite of demand the rent due had not been paid by them. It was further asserted that the accommodation in dispute which had been let out for business purposes was not being used at all without any justifiable reason and was kept locked for more than six months preceding the date of filing of the suit and was not being utilised for the purposes for which it has been let out. It was also asserted that the plaintiff No. 4 was sitting idle without any employment who wanted to establish himself in Parchuni business. The plaintiffs asserted that they will utilise the first floor of the accommodation in dispute for residential purposes and ground floor will be utilised for the business purposes. So far as the residential accommodation was concerned the need set up was for Rakesh Kumar, plaintiff No. 4. They claimed that plaintiffs have no other alternative suitable accommodation which could satisfy their need.
4. The aforesaid suit was contested by the defendants, Anil Kumar and Mst. Harbanshorani, who filed a joint written statement. They claimed that the accommodation in dispute included both the portions i.e. residential as well as non-residential which had been let out to the grand-father of plaintiff No. 1 i.e. the father-in-law of defendant No. 2. They admitted that the rent which was being paid was at the rate of Rs. 100/- per month, but it included the water charges etc. However, they denied the existence of relationship of landlord and tenant between them and the plaintiffs, and asserted that they had no right to receive rent from them claiming that they had never attorned to the tenancy and the suit filed by the plaintiffs was not maintainable. They denied the plaintiffs to be the heirs and legal representatives of the last owner/landlord. They denied the "Will" set up by the plaintiffs in their favour claimed to have been executed by Devibai the last owner/landlady of the accommodation in dispute. They asserted that they had paid the rent due upto October 1986 to the deceased Devibai and no rent was due to the plaintiffs. They also denied the need and requirement set up by the plaintiffs. They also asserted that the need and requirement set up by the plaintiffs was neither genuine nor bona fide. Various other pleas were also raised.
5. On the pleadings of the parties the trial Court framed seven issues on 8-9-1987. On 9-9-1992 the trial Court had fixed 24-9- 1992 for leading of the oral evidence of the defendants. On 24-9-1992, however, the defendants did not appear and the trial Court passed an order proceeding ex parte against them fixing 12th October 1992 for final hearing. However, vide the order dated 23-10-1992 the trial Court allowed an application filed by the defendants under Order 9, Rule 7, Civil Procedure Code for setting aside the order proceeding ex parte against them subject to the condition of payment of Rs. 20/- and fixed 3-12-1993 for the evidence of the defendants. The defendants on that date sought for an adjournment which was allowed fixing 23-12-1992 for that purpose. The date was again adjourned to 12-1-1993. However, before this date the defendant No. 2, Mst. Harbanshorani died on 5-1-1993. An application dated 12-1-1993 was filed under Order 22, Rule 4, Civil Procedure Code by the plaintiffs seeking to bring on record Anil Kumar her son, Smt. Anita Sachdeva and Ku. Uma alias Hariom, her daughters, as her heirs and legal representatives. Ku. Uma alias Hariom was shown to be aged 15 years and was sought to be brought on record under the guardianship of her brother, Anil Kumar, who was already on record. This application was supported by an affidavit. The trial Court passed an order on 6-2-1993 for issuing notice of the application fixing 23-3-1993 for its disposal. On 14-5-1993- the defendant No. 1 was represented by Shri Agarwal, Advocate, and the proposed heirs were also represented by the said Advocate, who had put in appearance on their behalf also. They sought for an adjournment which was allowed fixing 6th of July 1993. On 6th July 1993 the counsel for the proposed heirs was supplied copy of the application filed under Order 22, Rule 4 Civil Procedure Code and took time to file reply, if any, and make their submissions for which purpose 16th July 1993 was fixed. The only objection to the aforesaid application raised was that it was not accompanied by a Death-Certificate. The trial Court disposed of the aforesaid application under Order 22, Rule 4, Civil Procedure Code vide the order dated 27-7-1993. In its order it was noticed that the only objection to the application was in regard to non-filing of the Death-Certificate of the deceased defendant. But, it had not been disputed that the defendant No. 2 was the mother of defendant No. 1 and the fact of her death, in the absence of any evidence to the contrary was liable to be accepted. The application was allowed as prayed for directing that after the amendments in the plaint in the array of parties, the copies of the plaint etc. be supplied to the proposed heirs. On 25-9-1993 the trial Court directed that since the proposed legal representatives/heirs have been brought on record, if they desired they could file their written statements by the next date. On 9-10-1993 the Advocate representing the proposed heirs made statement before the Trial Court that these defendants did not intend to file any written statement. Thereafter, the trial Court fixed 17-11-1993 for leading of the evidence by the defendants, which was later on adjourned to 13-12-1993. On 13-12- 1993 the defendants did not appear. However, an application under Order 26, Rule 1, Civil Procedure Code was presented by the Clerk of the counsel representing the defendants. The trial Court noticed in its order dated 13-12-1993, that the defendants had not paid the cost imposed in the order dated 23-10-1992 with the result that the order proceeding ex parte against them which had been passed on 24-9-1992 had continued to remain operative. It was made clear that in the circumstances the suit will proceed ex parte against the defendants. On 6-1-1994 the defendants remained absent and while disposing of the application under Order 26, Rule 1, Civil Procedure Code the trial Court noticed that the defendants had not complied with the conditions imposed in the order dated 23-10-1992 in spite of the objections in this regard having been raised by the plaintiffs. Even though in the order dated 13-12-1993 whereunder this position was clarified that the suit will proceed ex parte no effort was made by the defendants to get the order proceeding ex parte against them recalled or to see that the condition imposed thereunder is complied with, and rejecting the application filed under Order 26, Rule 1 by the defendants the trial Court proceeded to hear the suit on merits. The trial Court fixed 13-1-1994 for the delivery of judgment: On 13-1-1994 however the defendants sought for time to obtain stay order from the revisional Court, which was granted, fixing 21-1-1994. Thereafter, the proceedings remained stayed awaiting the orders of the revisional Court and the order-sheet indicates that on 18-2-1994 finding that the revision had been dismissed, the trial Court fixed 16-2-1994 for the delivery of judgment, which was later on adjourned to 26-2-1994. On the aforesaid date the trial Court passed an order, recorded in the order-sheet, to the effect that there was a clerical mistake which had occurred while framing Issue No. 1 wherein instead of Rs. 100/- the rate of rent was shown to be Rs. 90/- only. This mistake was directed to be corrected. Similarly, a clerical error was found in omitting to mention 'Talha Niwas Hetu' in Issue No. 4, as the issue No. 4 was to the effect that as to whether the disputed accommodation was bona fide required by plaintiff No. 4 for his own business. Taking into account the pleadings the word "and for residence" was found to have been omitted and therefore added. It was further noticed that although on the facts pleaded in the plaint it was apparent that the plaintiffs had also sought for a decree of eviction, on the ground under Section 12(1 )(d) of the Act but an issue on this question could not be framed even though the plaintiffs led evidence in support of the plea specifically taken in the plaint in this regard. In the circumstances an additional issue on the aforesaid question was framed which was as to whether the disputed shop was lying closed for a period of six months preceding the date of filing of the suit and was not being utilised. Thereafter, the judgment was delivered holding the plaintiffs to be entitled to a decree of eviction on account of the grounds envisaged under Section 12(l)(e) and 12(l)(f) of the Act having been made out.
6. The trial Court found that the "Will" set up by the plaintiffs was duly executed and attested. It was held to have been proved in accordance with law. The trial Court further found that the relationship of landlord and tenant existed between the plaintiffs and the defendants. The defendants were found to be tenants of the plaintiffs and the rate of rent was found to be Rs. 100/- per month. The defendants were further found to be defaulters in the payment of rent, but in spite of this finding, the ground envisaged under Section 12(l)(a) of the M.P. Accommodation Control Act, was not found to have been made out as the plaintiffs could not prove the service of the notice contemplated therein. The plaintiff's need and requirement for the accommodation in dispute was found to be genuine and it was further found that they have no alternative suitable accommodation which could satisfy their need. The newly framed additional issue No. 8 was decided against the plaintiffs holding that the requisite conditions contemplated under Section 12(l)(d) of the Act had not been established. The trial Court, therefore, decreed the suit for eviction and recovery of arrears of rent and damages for occupation at the rate of Rs. 100/- per month. A decree of eviction, as has already been stated above was passed under Sections 12( 1 )(e) and 12( 1 )(f) of the M.P. Accommodation Control Act, only.
7. Aggrieved by the aforesaid decree the defendants Anil Kumar, Smt. Anita Sachdeva as well as Ku. Uma filed an appeal.
8. The First Appellate Court in its impugned order has held that the plaintiffs had not taken steps as required under Order 32, Rule 3, Civil Procedure Code for the appointment of the guardian of the minor, Ku. Uma, who had been brought on record as an heir and legal representative of the deceased defendant, Mst. Harbanshorani. The Court below" has expressed the view that in the present case the consent of the brother of the minor defendant had not been obtained. It was also observed that the so called guardian of the minor defendant had not properly conducted the case of the minor defendant with the result that an ex parte decree had been passed against the minor defendant. It was also observed that the trial Court had not taken into consideration the interest of the minor and had to be more vigilant. It was further observed that the issue on the question relating to the availability of the ground envisaged under Section 12(l)(e) of the Act had been framed as issue No. 4. The evidence had been led on this issue. However, the trial Court after leading of the evidence had amended the issue No. 4 and added the ground envisaged under Section 12(l)(f) also. Similarly, it had framed an additional issue No. 8 on the ground which related to the ground under Section 12(l)(c) of the Act.
9. The lower appellate Court was of the view that it was incumbent on the trial Court to provide an opportunity to the parties to lead evidence on the amended issues which was not done. In view of the aforesaid finding holding that the decree of the trial Court had been passed against the appellant No. 3 without appointing the guardian and no opportunity had been afforded to the appellant to lead evidence on the additional issue framed, the lower appellate Court set aside the decree of the trial Court and remanded the suit for being decided afresh in accordance with law.
10. The learned counsel for the appellants has strenuously urged that in the facts and circumstances of the present case no justifiable ground could be said to have been made out for interference in the decree passed by the trial Court on the assumption that there had been a fatal defect in the appointment of the guardian-ad-litem so far as the minor heir of the deceased defendant was concerned who had been brought on record as defendant No. 3 and in any view of the matter no prejudice could be deemed to have been caused to the aforesaid defendant which could justify the setting aside of the entire decree on the ground of the defect in the appointment of the guardian or on the ground that the defendant No, 3 had been prejudiced on account of having been deprived from leading evidence in support of her defence.
11. Learned counsel for the defendant-respondents, has, however, tried to support the impugned order passed by the trial Court on the reasonings contained therein.
12. I have considered the rival submissions made by the parties. It seems to me that an omission to defend or to raise a particular plea by a Guardian-ad- litem might in the circumstances of a particular case amount to negligence and the failure to pursue a defence available to the minor or not raising a defence open to a minor or not to put forward the correct defence may constitute gross negligence and the minor can get such a decree declared not binding upon him. As pointed out in the decision of the Mysore High Court in the case of Bore Gowda v. B. Nagaraju reported in AIR 1969 Mysore 8, in para 10, the question as to whether gross negligence was made out or not is a question of law. In case of gross negligence of the guardian having been established the decree becomes voidable against the minor as clarified in the decision in the case of Siraj Fatima v. Mahmood Ali, reported in AIR 1932 Allahabad 293, rendered by a Full Bench.
13. In the present case, as has already been noticed hereinabove the trial Court had taken appropriate steps for the impleadment of the minor defendant under the guardianship of her brother after issuing notices in a proper manner. It had further ensured that the minor is afforded an opportunity to file a written statement. The minor had put in appearance in the case and had engaged an Advocate also to represent her. The deceased defendant No. 2 had filed a joint written statement along with defendant No. 1 putting in a contest the plaintiffs' claim. It was, therefore, obvious that the interest of the defendant No. 1 and the interest of the defendant No. 2 were not adverse. The minor defendant had stepped into the shoes of the deceased defendant No. 2. Still, the trial Court had afforded an opportunity to the defendant No. 3, the minor defendant, who had been brought on record as an heir and legal representative of deceased defendant No. 2 to file a written statement. It was not possible or permissible for her to take a defence contrary to the defence which had already been put in by the deceased defendant. In fact, the statement made by her counsel/Advocate before the trial Court that she did not intend to file another written statement was clearly indicative of the fact that she had adopted the defence taken by the defendant No. 2 which was the same as taken by the deceased defendant since the written statement filed by them was common and joint written statement. The application filed under Order 22, Rule 4, Civil Procedure Code wherein the applicants had sought for bringing on record the minor heir under the guardianship of her brother, the defendant No. 1, was duly supported by an affidavit. No counter affidavit had been filed indicating that she should not have been impleaded under the guardianship of her brother or that he was not a suitable person. In the facts and circumstances of the present case, the procedure adopted by the trial Court in regard to the appointment of the brother of the minor as her guardian-ad-litem could not be taken to have resulted in a situation where it could be said that the minor was left unrepresented and had been prejudiced on account of an error on the part of the trial Court to appoint a guardian-ad-litem for her or that the guardian-ad-litem appointed had any interest adverse to the minor. Anil Kumar, who had been appointed as a guardian had not shown his disinclination to act as guardian-ad- litem of the minor. In fact the appeal which had been filed by the defendant No. 3 against the decree passed by the trial Court was an appeal which had been filed under the guardianship of the same person who had been appointed as guardian-ad-litem by the trial Court.
14. It may further be noticed that in the present case the status of the minor appellant was only that of a joint tenant. Taking into consideration the pleadings contained in the written statement and the ratio of the decision of the Apex Court in the case of Harish Tondon v. Additional District Magistrate, Allahabad, reported in AIR 1995 SC 676, it is apparent that the status of the minor defendant was only that of a joint tenant along with the original defendant No. 1.
15. In the aforesaid circumstances, therefore, it seems to me that the finding of the First Appellate Court that the entire decree passed by the trial Court stood vitiated in law and was liable to be treated as nullity in view of the defect in the appointment of the guardian-ad-litem for the minor defendant No. 3 is manifestly erroneous in law and has been arrived at ignoring altogether the steps taken by the trial Court to ensure that the minor defendant is provided full opportunity to file a written statement and prosecute her defence which was the same as put in by the deceased defendant No. 2 which had been adopted by her.
16. So far as the framing of the additional issue No. 4 and the correction of the clerical errors occurring in the recording of the issues Nos. 1 and 4 are concerned it seems to me that the defendant-appellant No. 3 could not have any grievance against that. The additional Issue No. 8 had been decided against the plaintiffs. The plaintiffs had not filed any cross-objection challenging that finding. In the circumstances, there could be no occasion for remanding the case directing the trial Court for deciding the aforesaid issue afresh after affording an opportunity to the defendant No. 3 to lead evidence.
17. So far as the question relating to the amendment of Issues Nos. 1 and 4 is concerned the error was clearly a clerical one. The requisite pleadings seeking to make out the availability of the ground envisaged under Section 12(l)(e) and 12(l)(f) of the Act had been clearly set out in the plaint. In fact, the defendant had contested the claim of the plaintiff in regard to the availability of the aforesaid ground. The plaintiffs had led evidence to establish their claim in regard to the above. The witnesses examined in this regard by the plaintiffs in support of their claim in connection with the above had been duly cross-examined by the defendants. In the circumstances, therefore no prejudice could be said to have been caused to the defendants by the correction of the clerical mistake in the recording of the issues specially when the order proceeding ex parte against the defendants had already become final and in spite of full opportunity having been provided the defendants had failed to lead any evidence whatsoever in support of their defence.
18. It is settled law that though liberal consideration to the pleadings is to be given so as to allow any question to be raised and discussed covered thereunder yet where a claim has never been made, no amount of evidence can be looked into upon a plea which never put forward. A decision of a case cannot be based on the grounds outside the pleadings of the parties. It is the case pleaded which has to be found. It should, however, not be lost sight of that consideration of form cannot override the legitimate consideration of substance. If a plea is not specifically made and yet it is covered by an issue by implication and the parties know that the said plea was involved in that event the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence.
19. In the present case, there is no dispute that the pleadings were clear. The defendant very well knew the claim of the plaintiffs and the fact that they had sought for a decree of eviction on both the grounds envisaged under Section 12(l)(e) and 12(l)(f) of the M.P. Accommodation Control Act. The plaintiffs had led evidence in support of the aforesaid claim. The defendants had cross-examined the witnesses produced by the plaintiffs. They had not led any evidence in support of their defence in spite of full opportunity having been provided for the same. In the circumstances they could not be deemed to have been prejudiced in any manner in their defence by correction of the mistake in recording of issues Nos. 1 and 4.
20. Considering the totality of the circumstances brought on record and noticed hereinabove I am of the clear opinion that no justifiable ground could be said to have been made out for the remand of the suit for a fresh de novo trial directed under the impugned order.
21. In the result, this appeal succeeds in part. The impugned judgment and order passed by the First Appellate Court is set aside with the direction that the First Appellate Court shall consider and dispose of finally the appeal of the appellants on merits on the evidence and the materials already on record, keeping in view the observations made hereinabove, within a period not later than three months from the date of production of a certified copy of this order before it.
22. There shall, however, be no order as to costs.